Appeal from judgment of Court of Common Pleas of Delaware County, No. 10105 of 1963, in case of Margaret C. Luckenbach v. Edith Egan.
Alexander A. DiSanti, with him Richard, Brian & DiSanti, for appellant.
John S. J. Brooks, with him Brooks, Oliver, Macartney & Holl, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Dissenting Opinion by Mr. Chief Justice Bell.
Margaret C. Luckenbach, the plaintiff, was injured while riding in an automobile with the defendant, Edith Egan, who was driving. Because of another car which pulled out in front of the Egan car, the defendant suddenly applied her brakes and the sudden stoppage threw the plaintiff against a metal standard to her injury. She brought suit in trespass against Egan and the jury returned a verdict for the defendant. The plaintiff seeks a new trial.
In his charge to the jury the trial judge said: "It will be your obligation to decide which side you are going to believe, because, if you believe the plaintiff, the plaintiff must recover; if you believe the defendant, the defendant must recover; you cannot take part of the plaintiff's story and put it over in the defendant's story, nor can you take part of the defendant's story and put it in the plaintiff's story."
This instruction was in error. The plaintiff had testified that the automobile was traveling eastwardly on Parkside Avenue in Philadelphia at a speed of 40 to 45 miles per hour in a 35-mile speed limit zone, that she warned the defendant to "take it easy," and that as they approached Paxon Street intersecting Parkside, a car parked on the south side of Parkside west of Paxon Street pulled out from the curb in front of the Egan car.
The defendant testified that the accident happened on Parkside just west of 51st Street, also intersecting Parkside. She denied the speed stated by the plaintiff and declared, on the other hand, that she was traveling at the rate of only 20 to 25 miles per hour. She also refuted the statement of the plaintiff that the latter had told her to "take it easy."
The trial judge, in denying plaintiff's motion for a new trial, said: "The question at issue, put as simply as possible, is what was the speed of defendant's car at Parkside Avenue, near Paxon Street, and what was the speed at 51st and Parkside, a square and a half away. The only answers to this question comes from the plaintiff in regard to Parkside Avenue and Paxon Street and from the defendant as to 51st and Parkside."
From this the judge assumed that it was impossible to reconcile the plaintiff's and the defendant's testimony and that, therefore, one or the other of the parties was ...